2017 (1) TMI 1571 - AT - Income Tax

TPA - selection of comparable companies - Held that - Assessee provides software development services to its Associated Enterprise AE , thus companies functionally dissimlar with that of assessee need to be deselected from final list. Deduction u/s 10A computation - Held that - Hon ble Bombay High Court in the case of CIT Vs. Gem Plus Jewellery India Ltd., 2010 (6) TMI 65 - BOMBAY HIGH COURT (Bom) and ITO Vs. Sak Soft Ltd. 2009 (3) TMI 243 - ITAT MADRAS-D wherein it has been held that communication charges etc., attributable to the delivery of the computer software outside India which are to be reduced from the export turnover should be reduced from the total turnover as well, while computing the deduction u/s. 10A. Therefore, we approve the direction of DRP to the AO to reduce the amount from the export turnover as well as from total turnover, while computing the deduction u/s. 10A of the I.T. Act.

Issues Involved:
1. Transfer Pricing Adjustments
2. Selection of Comparable Companies
3. Treatment of Foreign Exchange Loss
4. Provision for Bad and Doubtful Debts
5. Negative Working Capital Adjustment
6. Exclusion of Telecommunication Charges from Total Turnover and Export Turnover

Detailed Analysis:

Transfer Pricing Adjustments:
The assessee provides software development services to its AE, Intoto LLC, and is a captive risk-free service provider. The TPO rejected the assessee's TP study, citing inappropriate filters and multiple year data usage, and selected 18 comparable companies with an adjusted margin of 23.30%. This resulted in a proposed adjustment of ?2,71,82,139 under Section 92CA. The DRP accepted the exclusion of two companies, Infosys Technology Ltd. and Kals Information Systems Ltd., reducing the final list to 16 companies with an adjusted margin of 21.91%. The DRP also directed that communication expenses reduced from export turnover should also be reduced from the total turnover for the deduction under Section 10A.

Selection of Comparable Companies:
The assessee objected to four comparables: E-Infochips Bangalore Ltd., Sasken Communication Technologies Ltd., Persistent Systems Ltd., and Comp-U-Learn Tech India Ltd. The tribunal upheld the exclusion of E-Infochips Bangalore Ltd. due to lack of segmental data and functional dissimilarity. Sasken Communication Technologies Ltd. was remitted for fresh analysis due to high turnover and functional dissimilarity. Persistent Systems Ltd. was excluded due to high turnover and involvement in software products. Comp-U-Learn Tech India Ltd. was retained as a comparable, as the tribunal found no sufficient reason for exclusion.

Treatment of Foreign Exchange Loss:
The assessee did not press the ground related to the adjustment of foreign exchange loss as operating in nature, and it was rejected.

Provision for Bad and Doubtful Debts:
The tribunal directed the AO/TPO to re-compute margins by including bad debts and provision for bad and doubtful debts as operating expenses, following the decision in Kenexa Technologies Pvt. Ltd.

Negative Working Capital Adjustment:
The tribunal directed the TPO not to make any negative working capital adjustment, citing the decision in Adaptec (India) P. Ltd., which held that negative working capital adjustment is not justified for a captive service provider that does not bear working capital risks.

Exclusion of Telecommunication Charges from Total Turnover and Export Turnover:
The tribunal upheld the DRP's direction to exclude telecommunication charges from both total turnover and export turnover while computing the deduction under Section 10A, following the decisions in CIT Vs. Gem Plus Jewellery India Ltd. and ITO Vs. Sak Soft Ltd.

Conclusion:
The appeal of the assessee was partly allowed for statistical purposes, and the appeal of the Revenue was dismissed. The tribunal provided specific directions on the selection of comparables, treatment of provisions for bad debts, and adjustments for working capital, ensuring compliance with established legal precedents.

← Previous Next →